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Thursday, February 02, 2017

Supreme Court Litigation Behind the Veil

We hosted Ted Olson today as part of the law school’s speaker series, and listening to him lament the intense politicization of the Supreme Court, I was reminded that I have a paper deadline upcoming. In early April, Pepperdine Law School is hosting a symposium focused on these issues, and, like Eric Segall and others, I have proposed a possible structural reform.

Article III imposes no numerical constraints on the makeup of the Court. Neither does it specify how many Justices must hear or vote on any particular case, nor how those Justices must be assigned. Thus, the original Judiciary Act of 1789 provided for six Justices, which number was reduced to five in the infamous Midnight Judges Act, and each Justice regularly “rode Circuit” to help decide lower appeals cases until 1891. There is, in other words, no constitutional magic in the current structure of Supreme Court decision-making.

With this in mind, I propose a change to the longstanding practice whereby every non-recused Justice participates in every case.   I suggest that cases could be heard and decided by panels consisting of some smaller number of Justices—say, for now, three—and that the particular makeup of these panels could be the product of some version of fair division theory protocol.   In other words, if the requisite 4 Justices vote to grant certiorari in Case X, then a mathematical mechanism would assign three Justices to the X panel. These three Justices would hear arguments and then cast votes in much the same way that Federal Circuit Court Judges now do.   Unlike the Circuit Courts, however, there would be no appeal for a hearing en banc. Or perhaps this would require a unanimous vote.

My thought is that such a system would place potential Supreme Court litigants behind a metaphorical “veil of ignorance,” where they would be risk averse in making strategic decisions. I suggest that this would discourage both the parties and certiorari granting Justices from viewing the Court as a potential policy driver on closely contested issues.   For example, uncertainty about whether a controversial abortion case will come before Justices Roberts, Thomas, and Breyer—or before Justices Kagan, Kennedy, and Sotomayor—will likely dissuade parties (or Justices) averse to the risk of an unfavorable precedent.  

This, in turn, suggests a smaller number of petitions (and certiorari grants) in controversial or ideologized cases—and a corresponding increase in non-politicized Circuit splits and other more “judicial” kinds of questions. This would not, of course, do much to ameliorate the politicization of the appointment or confirmation process—politicians would still want to maximize their chances on the bench, but it would, I suggest, curb the growing practice of treating the Court as a political shortcut.

One of the virtues of my approach is that, unlike other structural proposals, it does not (I don’t think) require a constitutional amendment. The Court could either adopt an internal change to its practices, or Congress could act pursuant to Article III authority to impose “regulations” on the Court’s appellate jurisdiction. While perhaps still a difficult political sell, this would be much easier to accomplish then an Article V amendment.

This is still a very, very rough sketch and proposal, and I’m sure there are a lot of things wrong with it.  As ever, I’d be grateful for thoughts or suggestions on how to improve it.

Posted by Ian Bartrum on February 2, 2017 at 09:48 PM | Permalink


On Robert's point about precedent, again, Ian's proposal is not wholly new, and it basically replicates the structure of the Supreme Court of the United Kingdom. And the overall effect is that having cases come out of panels rather than a full bench produces a situation compared to the US where each individual case opinion has less binding constraint, but respect for precedent as a concept overall is stronger and really means something, rather than just being a thing that Justices pay lip service to while in reality ignoring whenever it gets in the way of their ideological druthers.

If that seems self-contradictory, I think the same phenomenon applies in the federal courts of appeals. Because there are many more panel opinions, each panel opinion has less precedential force in the court that decided it (than a prior Supreme Court decision has in the Supreme Court). But the concepts of "law" and "horizontal stare decisis" counts for more in the courts of appeals than it counts in the Supreme Court, and the culture of the courts of appeals is more legalistic than it is at the Supreme Court.

Posted by: TJ | Feb 3, 2017 8:54:50 PM

Again, interesting stuff, and thanks. Jordy: I think you're right to emphasize Adam's point about the virtue of more resources; I guess I'm not as concerned about the legitimacy thing--First, I'm not sure it can get worse than it is now--Second, I think the legitimacy issue is most acute in highly controversial cases, which (hopefully) become less common. JC: Appeal to en banc would either not exist or require a unanimous vote of all 9, so I think that gets around your point--and if it's unanimous appeal, might help the legitimacy issue. M. Rad: Fascinating ideas, but perhaps beyond the scope of my idea, which is partly focused on reforms that don't require constitutional amendment.... Keep 'em coming!

Posted by: Ian Bartrum | Feb 3, 2017 3:16:10 PM

Ooh, just thought of something. If you make the rule, "One appointment per year unless that president's appointees would exceed 25% of the court," it removes much of the incentive for current justices to linger on the court into senility. Staying on the court lowers the fraction of justices not appointed by the current president, so the ideological impact of clinging to a spot in the bench is diluted.

Posted by: M. Rad. | Feb 3, 2017 2:17:47 PM

I see the rest of you are catching up to the point I made a couple days ago on "Framing the coming debate on the Gorsuch nomination". My suggestion of 5000 justices is perhaps a bit hyperbolic, but it could be implemented with an act of Congress that says, "The SCOTUS will grow to the necessary size, *provided* the president nominates every judge on such and such benches and the Senate confirms all of them at once. But they still keep their old seats on the lower courts."

Otherwise you will have the current president packing the court (or the lower courts).

Another way to get there is incrementally. Nominations can be on a deterministic schedule, starting slowly, but still outpacing the death/retirement rate: maybe one justice every 2 years, and then one every year, and then one every 6 months, etc, and then down to a slower rate once the court gets to a sufficient size that the stakes for any one nomination are something below riots-in-the-streets contentious. If you do it right, at no point would a sitting president have a SCOTUS with more than 25% of his own appointees. (Or just make that the rule: One appointment per year unless that president's appointees would exceed 25% of the court.)

Posted by: M. Rad. | Feb 3, 2017 2:09:58 PM

I don't see how this will work. The party that loses before a panel can ask for rehearing byou the full bench, and the conservative majority can vote to rehear it and reverse the panel. So it's just going to lead to wasted resources

Posted by: JC | Feb 3, 2017 2:06:45 PM

Very interesting post. I generally agree with the tenor of the previous comments, and I further suspect that the proposal would have significant adverse effects on the Court's public legitimacy. Members of the public will stomach a 5-4 decision even if they are on the losing side, not because they agree with the outcome but because both sides presented their arguments and the entire Court had its say. But would the public as a whole be so willing to accept a three-judge decision overturning precedent on abortion, capital punishment, or a host of other controversial issues? Or (to take a more specialized example), would the decision of a three-judge Supreme Court panel in an area of patent law really be viewed by practitioners and the PTO as more legitimate than the underlying decision of an en banc panel of the Federal Circuit?

Perhaps you could also talk a bit about resource allocation on the Court. If, as Adam suggests in his comment, this proposal would allow the Court to take many more cases each Term, would that also require greater staffing and resources?

Posted by: Jordy Singer | Feb 3, 2017 12:55:21 PM

Thanks for these comments. Super interesting and thought provoking. TJ, you raise some good realpolitik thoughts that I hadn't considered, and I'll have to give them some thought. Robert, the precedent question is a great one, and I suppose the Court might have to adopt an internal position on that. Your second point I actually had thought a little bit about, at least in the sense that in certain cases, this set up might make litigants MORE willing to take risks. I haven't worked anything out on that, though. If any one has thoughts, don't be shy...

Posted by: Ian Bartrum | Feb 3, 2017 12:17:13 PM

Interesting idea. But it raises at least a few questions apart from those in the other comments. Let me flag two here: 1) What would be the effect on precedent? E.g., would the justices give decisions of a 3 member panel the same deference they now give decisions of the full court? 2) What would be the effect on other types of cases the court now confronts – i.e., cases apart from those on which the court appears closely divided? For example, suppose that only 2 current justices out of 9 believe that Chevron deference should be abandoned. Under current rules, there’s little point to a litigant asking the court to jettison Chevron – it’s not a closely divided question. But under your proposal, such a move might make sense – it at least has a chance of prevailing (maybe 1 in 36, depending on how precedent is treated, how panels are chosen, etc.). And this in turn might affect nominations, if a President really cares about some issue that holds only minority support – getting a third justice on the court that shares this minority view would greatly increase the odds of success (to 1 in 12).

Posted by: Robert Mikos | Feb 3, 2017 11:06:36 AM

This mostly tracks the structure of the UK House of Lords and now the Supreme Court of the UK. One result of the structure is that the UK courts are much weaker compared to US courts (not the only reason, but it plays a role). For this reason, this is dead on arrival in the Supreme Court--why would AMK basically vote to castrate himself? And if Congress tries to shove it down the Supreme Court's throat, it would be an interesting chicken and egg problem whether the case goes before a full nine member Court (which will promptly strike it down for the same reasons above) or whether it goes before a 3 member panel (which if it got 2 liberals on it might uphold it just so that the liberals could get some victories once in a while).

Posted by: TJ | Feb 2, 2017 11:18:38 PM

A few thoughts on this. First, doing panels would allow SCOTUS to handle a lot more cases and resolve some of circuit splits that should have been addressed long ago.

Second, if doing panels, why not increase the size of the court? Have 10 or 20 Justices and panels of perhaps 5, not 3.

Third, perhaps panels are appropriate for only certain types of cases, say statutory cases, with the full court for constitutional cases.

And fourth, can we get the Court to start wearing red robes for capital cases. Some might like the spectacle for its own sake and some might like it because it would focus the court on the importance of the occasion.

Posted by: Adam Levitin | Feb 2, 2017 10:58:29 PM

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